INTRODUCTION
The Supreme Court of India’s historic order in the case of National Legal Services Authority v Union of India, 2014[1] (NALSA) It was a turning point in the fight for transgender rights in India. The Court reiterated that transgender people have the constitutional right to self-identify their gender, relying on Articles 14, 19, and 21 of the Indian Constitution. The Transgender Persons (Protection of Rights) Act, 2019, was a positive step in this regard since it included the provision of issuing a certificate of identity based on a self-declared affidavit, with no medical procedure being mandatory. However, the passage of the Transgender Persons (Protection of Rights) Amendment Act, 2026,[2] marks a drastic change in this approach since it mandates that an individual’s gender identity can be formally acknowledged only after a medical examination by a Medical Board appointed by the government. This legislation has completely overturned the essence of self-identification emphasised in the NALSA verdict and has raised crucial constitutional concerns.
This blog raises a key question in this regard: whether the medical verification of gender as a prerequisite to legal gender recognition is a breach of the constitutional rights that were guaranteed under NALSA. It contends that these are not only “practical inconveniences” but also “unconstitutional” as they violate the Constitution’s protections of dignity, autonomy, equality, and freedom from discrimination for all individuals.
THE NALSA MANDATE: SELF-IDENTIFICATION AS A CONSTITUTIONAL RIGHT
The NALSA judgment was clear in holding that gender identity is an important part of one’s personality, and all people are entitled to express their gender.[3] In its reasoning, Justice K.S. Radhakrishnan pointed to international instruments, such as the Yogyakarta Principles, which state that the term gender identity refers to “the whole internal and subjective experience and perception of a person’s gender which may or may not correspond with the sex which was assigned at birth”.[4] Importantly, NALSA urged the central and state governments to provide legal recognition to the gender of transgender persons as well as create welfare programmes for their upliftment. The order did not require medical verification as a precondition. This was upheld by the central government by enacting the Transgender Persons (Protection of Rights) Act, 2019.[5]
THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2026: A LEGISLATIVE RETREAT
The introduction of the Transgender Persons (Protection of Rights) Act, 2019, 5 years after NALSA, was a significant step towards codifying the rights of transgender persons. Although the procedure for the same has been challenged by some legal scholars, this Act nonetheless achieved a major milestone by affirming the principles of self-declaration. In accordance with the Rules under the 2019 Act, any person who wanted to receive a “Transgender” certificate was expected to submit a self-declaration of their gender without having to undergo a physical examination in a medical facility.
By comparison, the current amendment, i.e., Transgender Persons (Protection of Rights) Amendment Act, 2026, is a total regression that brings the concept of medicalisation back into the picture. The new Act, instead of relying on self-declaration, requires individuals to get their gender verified by a committee of medical officers and psychologists, thus mandating a mandatory Medical Board verification.[6] This move marks an exact “diagnostic” gatekeeping that NALSA sought to put an end to. In effect, the new legislation allows state-appointed medical authorities to determine what constitutes the “real” self of a particular person by imposing on them clinical verification. This is not merely a technical error but is a clear breach of the right to dignity and privacy, once again pushing an ostracised group into the confines of the clinics that the Supreme Court ruled against as unconstitutional.
CONSTITUTIONAL INFIRMITIES OF MEDICAL VERIFICATION
The medical verification requirement is unconstitutional for several reasons. First, it is an infringement of the fundamental rights to dignity and personal autonomy as guaranteed under Article 21. The Supreme Court in Puttaswamy (2017) has, in a unanimous judgement, declared privacy as a fundamental right and highlighted that the right of decisional autonomy (the right to make intimate decisions about one’s own life) is central to it.[7] Forcing a transgender person to undergo a medical examination is a direct violation of this right.
Second, medical verification is an infringement of the right to equality under Article 14. No medical or psychological certificate or documents are necessary for a cisgender person to have their legal gender recognised. Demanding it only from the transgender population categorises them as a “suspect class” and considers their self-description as inherently unreliable unless validated by the State. There is thus no rational nexus between the differentia and the object of the legislation.[8] The process rests upon the stereotype that the declaration by a transgender person regarding their identity is necessarily dubious, thereby requiring official confirmation of that claim, which does not apply to other people. There is no need for such a requirement in the first place, as it serves no legitimate purpose of the state and provides ample discretion for investigating one’s gender identity. This procedure discriminates against transgender persons without sufficient reason and is, thus, discriminatory under Article 14 of the Indian Constitution.
Third, the requirement violates Article 21 in a broader sense as being cruel, degrading, and inhumane. A mandatory physical inspection of the intimate parts of the anatomy has been recognised as torture by various international human rights organisations. In fact, the Special Representative of the United Nations Commission on Human Rights on Torture has held that mandatory or compulsory procedures performed on transgender persons can amount to ill-treatment and even torture under international human rights law.[9]
COMPARATIVE PERSPECTIVES
In contrast to India’s position, various international regimes have adopted more progressive frameworks. For instance, Argentina passed the Gender Identity Law in 2012, which allows individuals to alter their legal gender through application alone, without any medical intervention. Malta’s Gender Identity, Gender Expression and Sex Characteristics Act (2015) is also based on self-declaration. Even the Council of Europe’s Parliamentary Assembly has urged its member nations to scrap the need for medical evidence as an essential condition for granting legal gender recognition, arguing that it violates human dignity. [10]
Even within Asia, Nepal’s Supreme Court made recommendations in 2007,[11] recognising the gender identity of a person as per their self-identification. Similarly, Pakistan’s Transgender Persons (Protection of Rights) Act, 2018, recognises the self-perceived gender identity of individuals for legal purposes.[12] Ironically, India, which has made one of the most progressive judgments regarding transgender rights, has moved away from its constitutional expectations.[13]
THE WAY FORWARD
First of all, it is necessary to end the screening committee mechanism provided by the Transgender Persons (Protection of Rights) Act, 2026, and replace it with a simple self-declaration model if constitutional compliance is to be achieved along the path provided. The government has to harmonise laws and regulations with the interpretation of NALSA as well as the privacy jurisprudence of Puttaswamy. When challenged on certification issues, courts should apply a high standard of scrutiny and understand that laws that have an impact on intimate issues of identity are subject to more than a rational basis challenge.
As a result, civil society groups must keep battling in court and campaign for the realisation of transgender constitutional rights, so that NALSA’s promise doesn’t just remain a textual hope, but a reality for all transgender persons in India.
CONCLUSION
The constitutional question posed by the Transgender Persons (Protection of Rights) Amendment Act, 2026, is thus much more than just a procedural difference in regard to gender determination. By requiring the Medical Board’s endorsement for legal recognition of one’s gender, the amendment transfers decision-making power about one’s gender identity away from the individual concerned and into the hands of the State. Such an abandonment of the individual-choice model for determining gender identity is highly problematic, especially from the perspective of rights to privacy, equality, and dignity, which are essential features of the constitutional scheme.
Indeed, the very fact that the Amendment Act departs from the constitutional jurisprudence established in NALSA raises significant questions about the sustainability of the promise contained in that historic judgment.
Author(s) Name: Tina Chakraborty (The West Bengal National University of Juridical Sciences (NUJS))
References:
[1] National Legal Services Authority v Union of India and Ors (2014) 5 SCC 438
[2] Transgender Persons (Protection of Rights) Amendment Act 2026
[3] National Legal Services Authority v Union of India and Ors (2014) 5 SCC 438
[4] The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (International Commission of Jurists 2007)
[5] Transgender Persons (Protection of Rights) Act 2019, ss 4–6
[6] Sarah Shamim, ‘The Trans Amendment Bill: Everything You Need to Know’ (IDR, 27March 2026) <https://idronline.org/article/rights/the-trans-amendment-bill-everything-you-need-to-know/> accessed 13 May 2026
[7] Justice K S Puttaswamy (Retd) and Anr v Union of India and Ors (2017) 10 SCC 1
[8] Jayna Kothari, ‘Trans Equality in India: Affirmation of the Right to Self-Determination of Gender’ (2020) 13 NUJS Law Review 549 <https://articles.manupatra.com/article-details/Trans-Equality-in-India-Affirmation-of-the-Right-to-Self-Determination-of-Gender> accessed 24 May 2026
[9] Matteo E Bassetti, ‘Human Rights Bodies’ Adjudication of Trans People’s Rights: Shifting the Narrative from the Right to Private Life to Cruel and Inhuman or Degrading Treatment’ (2020) 12 European Journal of Legal Studies 291 <https://www.academia.edu/53258760/HUMAN_RIGHTS_BODIES_ADJUDICATION_OF_TRANS_PEOPLES_RIGHTS_SHIFTING_THE_NARRATIVE_FROM_THE_RIGHT_TO_PRIVATE_LIFE_TO_CRUEL_AND_INHUMAN_OR_DEGRADING_TREATMENT> accessed 24 May 2026
[10] Myles Williamson, ‘A Global Analysis of Transgender Rights: Introducing the Trans Rights Indicator Project (TRIP)’ (2024) 22(3) Perspectives on Politics 799 <https://www.cambridge.org/core/journals/perspectives-on-politics/article/global-analysis-of-transgender-rights-introducing-the-trans-rights-indicator-project-trip/3C143E501E0824C8F9F0C40925965F43> accessed 24 May 2026
[11] Sunil Babu Pant and Others v Nepal Government and Others [2007] Writ No 917 of 2007 (Nepal)
[12] Transgender Persons (Protection of Rights) Act 2018 (Pakistan)
[13] Susan Dicklitch-Nelson and Indira Rahman, ‘Transgender rights are human rights: A cross-national comparison of transgender rights in 204 countries’ (2022) 21(5) Journal of Human Rights 525 <https://www.tandfonline.com/doi/abs/10.1080/14754835.2022.2100985> accessed 24 May 2026